Developing the theory of your case

Alcohol licensing & hearings guide for regulatory agencies

Developing the theory of your case is an ongoing and fluid process that starts with receipt of the application and continues until hearings and any appeals are concluded.  You need to be flexible and responsive to new information throughout the entire licensing process.

Snapshot of this module

Start developing the theory of your case during your initial assessment of the application, then revise it through the subsequent steps in the process.

First, ask yourself: should the application be granted on the terms sought?

Your grounds for opposition need to be factual and specific, and related to the grounds for opposition under the Sale and Supply of Alcohol Act 2012 (the Act).

Consider what the application is lacking: why it does not meet the object of the Act.

You need to determine why you are opposing the application and link the grounds of your opposition to the specific premises.

Identify the evidence you have to support your argument: it is important that you base your position on up-to-date data.

Think about the arguments that the applicant might make and the evidence they may bring. Consider how you could counter the applicant’s arguments.

This module covers

  1. Do you oppose the application?
  2. What are the grounds for your opposition under the Act?
  3. What does the application lack?
  4. Why are you opposing this application?
  5. What evidence do you have?
  6. What are the contrary facts and arguments?
  7. How will you counter the applicant’s arguments?

1. Do you oppose the application?

First, ask yourself: should the application be granted on the terms sought?

For an alcohol licence, consider the relevant criteria (eg s105 and s131). For a Manager’s Certificate, consider the criteria in section 222. When considering these criteria also bear in mind the object of the Act.

Police and the Medical Officer of Health could consider using a risk matrix to identify high risk applications and target resources to these. You may choose to let the low risk ones proceed unopposed and put more effort inquiring into those with high risk profiles. Your organisation may already have a risk matrix suitable for this purpose or you can use the risk framework set out in Clause 5 of the Sale and Supply of Alcohol (Fees) Regulations 2013.

2. What are the grounds for your opposition under the Act?

Your grounds for opposition need to be factual and specific, and related to the grounds for opposition under the Act. You will need to back them up with evidence.

If you decide to oppose the application, decide on the specific grounds for this under the Act. For example:

  • Your opposition may relate to the object of the Act (section 4) ie, that “(a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and (b) the harm caused by the excessive or inappropriate consumption of alcohol should be minimised”.
  • Noise levels, rubbish or nuisance from the premises would affect the neighbourhood (section 105(1)(a) and (h)).
  • There have been problems with a licensed premises (bar or bottle shop) run by the applicant before (section 105(1)(b)).
  • The application does not meet the criteria set down in a local alcohol policy (section 105(1)(c)).

3. What does the application lack?

Consider what the application is lacking: why it does not meet the object of the Act. For example, is it lacking controls to ensure that alcohol-related harm will be minimised and amenity and good order will not be reduced other than to a minor extent?

4. Why are you opposing this application?

You need to determine why you are opposing the application and link the grounds of your opposition to the specific premises. You need to look for specific local evidence of existing alcohol-related harm and if possible any related to the premises in question.

For example, you may put to the committee that, in considering licence applications, it ‘must’ have regard to (i) the object of minimising the harmful effects of excessive or inappropriate consumption of alcohol and (ii) the effects on users of the locality.

You may argue, for example, that “users of the locality include minors and persons who are particularly susceptible to the harmful effects of alcohol and the premises in question have failed several Controlled Purchase Operations in recent years. If granted, this licence would increase the exposure of alcohol and the availability of alcohol to such persons. That is clearly inconsistent with the object of minimising alcohol-related harm”.

5. What evidence do you have?

What evidence do you already have to support your argument? It is important that you base your position on up-to-date data. Each agency needs to have effective mechanisms in place to record, store and retrieve data.

If you are dealing with a renewal, you need to look at what has happened in the intervening three years, not just what the situation is now. For example, have there been any Controlled Purchase Operations and what were the results? Have there been any breaches of licence conditions etc?

You may want to provide generic evidence of the availability of alcohol to vulnerable persons or effects of exposure of minors to alcohol. However, your argument will carry more force if you link your evidence to the specific community and premises in question.

You need to build a picture from the evidence that you have, and produce it in chronological order to demonstrate any patterns in alcohol-related harm or impacts on amenity and good order.

Draw on research and evidence that supports the case and use precedents that support the links and the desired outcome

6. What are the contrary facts and arguments?

What arguments might the applicant make? For example, if you are opposing based on minimisation of alcohol-related harm and amenity and good order, the applicant might argue that there has previously been an on-licence and an off-licence at precisely this location so harm is unlikely to change. They may challenge your arguments around availability, given the ready availability of alcohol in the community already.

What evidence might the applicant be able to gather in support of their case? How can you counter this evidence?

7. How will you counter the applicant’s arguments?

Think through how you might counter the applicant’s arguments. For example, if the applicant argues that alcohol has been sold previously in the area, you might argue that the price of alcohol sold at the previous on-licence and off-licence was high enough to mitigate alcohol-related harm associated with increased availability. Or that the generic mitigations through the offering of food etc are ineffective because the increase in exposure and availability is inherent in the establishment of licensed premises.